Unions seek bill of rights for delegates

The ACTU is pushing for the Gillard government to introduce a “bill of rights" for union delegates to secure protections beyond those in the Fair Work Act and any new safeguards arising from a High Court case.

But the union move on delegates’ rights will be hotly opposed by business and employer groups striving to roll back key elements of the existing workplace laws.

ACTU secretary
Jeff Lawrence
said unions had targeted stronger rights for delegates, along with abolishing the Australian Building and Construction Commission and a wider use of commonwealth procurement rules to improve pay and conditions.

“It would involve legislation that provides for the way in which [union] delegates operate," Mr Lawrence told The Australian Financial Review. “Something that articulates the role of delegates . . . not just in the bargaining system, but more generally."

A bill of rights might cover issues such as delegates’ right of entry and access to staff, along with protection against being transferred, singled out or penalised.

The plan is with Workplace Relations Minister
Bill Shorten
, who has established a three-member panel to report by May on whether Labor’s Fair Work Act is functioning as intended. The review has been criticised for not putting enough emphasis on economic issues such as productivity, but Mr Shorten insists these will be thoroughly canvassed and there will be no bias in favour of unions.

A spokesman for the minister said yesterday he would consider all proposals by “relevant stakeholders."

Both the Australian Industry Group and the Australian Chamber of Commerce and Industry said the idea should be quickly forgotten. “A bill of rights for union delegates is not warranted," Ai Group chief executive
Heather Ridout
said.

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“Union delegates already enjoy very extensive rights under the general protections in the Fair Work Act. In fact, these have proved to be far too loose and uncertain as highlighted in the Barclay v Bendigo TAFE decision of the Full Federal Court (which involved alleged misconduct by a union delegate).

“Unions also have the ability to pursue further benefits for union delegates through enterprise bargaining."

Employers are worried about the implications of the Barclay case which will go to the High Court this year and will determine the level of protection union delegates and shop stewards will enjoy under the Fair Work Act.

The Gillard government made a written submission last year to support union arguments that would allow judges to infer the “real reason" when management exercises its prerogative on issues like staff discipline.

The Barclay case involves a Vic­torian teacher, Greg Barclay, who was also a delegate of the Australian Education Union. He faced disciplinary action from his employer, a Bendigo TAFE, for sending an email with allegations about fraudulent ­documents circulating ahead of an accreditation audit. He did not raise the allegations with TAFE management beforehand and faced ­disciplinary action.

The case involves new provisions in the Fair Work laws that allow claims from employees who face “adverse action" for exercising a defined list of workplace rights, which include engaging in union activity at work.

The Bendigo TAFE has conceded that Mr Barclay faced “adverse action" but denied it was for a prohibited ­reason. It argued that a Federal Court appeal decision in favour of Mr Barclay should be overturned because it was contrary to earlier legal precedent and made it almost impossible for an employer to prove it did not engage in adverse action.

Counsel for the AEU argued it was enough to show that an employee’s role with the union was a factor in the decision-making, even if it was not the only factor.

The controversy centres on the court deciding what was the “real reason" for the disciplinary action against Mr Barclay.

Australian Chamber of Commerce and Industry industrial relations spokesman David Gregory said there were more cases showing “that under Fair Work, the balance between employer and union rights are out of whack".

“The union movement has already been conferred many additional rights under Fair Work with little regard to competing interests," he said.

One case Mr Gregory highlighted was the ADJ Contracting case, in which the Australian Industry Group will seek to overturn the so-called ADJ agreement covering Victorian electricity contractors which allows limits to be placed on use of contractors and requires employers to support union membership.

Mr Lawrence said unions would increase their focus on job security during bargaining in 2012 and as the ACTU continued its inquiry into “insecure work" at public hearings in February and March.

Agreements struck under the former Work Choices laws were expiring and there was legal dispute over how job security could be covered in deals negotiated under the Fair Work Act.